Kosher Supervision Services Inc. (Kof-K) has filed a complaint alleging Original Gourmet Food Co. used the “Kof-K” kosher certification mark on its product without authorization, alleging the snack maker’s action was “intentional and willful use of a counterfeit of the Kof-K mark.” Kosher Supervision Servs. v. Original Gourmet Food Co., No. 18-2487 (D.N.J., filed February 22, 2018). Kof-K asserts that it never contracted with Original Gourmet, approved or certified any of its products as kosher, or granted permission for its use of the certification mark. Alleging trademark infringement, false designation of origin, dilution of famous mark, unfair competition, Kof-K seeks injunctive relief, damages and a finding that the case is “exceptional” to permit an award of attorney’s fees.
Category Archives Litigation
A federal court in Washington will allow plaintiffs to amend a false advertising complaint alleging that their dogs became sick after eating pet food contaminated with pentobarbital, a drug used to euthanize animals. Mael v. Evanger’s Dog & Cat Food Co. Inc., No. 17-5469 (W.D. Wash., entered February 20, 2018). The complaint alleged that the plaintiffs’ dogs became ill after eating Evanger’s beef products and that a U.S. Food and Drug Administration (FDA) investigation found traces of pentobarbital in several of the company’s products. The plaintiffs allege that Evanger's falsely advertised the products as “human grade, USDA inspected meats,” although FDA reportedly found that none of the company’s products were USDA-inspected or human grade. After the FDA investigation, Evanger's recalled all of the products. Evanger's moved to dismiss the complaint, arguing that plaintiffs referred to both recalled and non-recalled products. The court found that the plaintiff had failed to allege…
MJS America LLC, maker of “Majans Bhuja Snacks,” faces a putative class action alleging that the primary ingredients of its “Ancient Grains Twists” are rice, peas, tapioca and sunflower or canola oil rather than ancient grains. Louis v. MJS America LLC, No. 18-1046 (E.D.N.Y., filed February 18, 2018). The plaintiff asserts that she paid a premium price for the product because she understood “Ancient Grains Twists” to mean that the snack was made exclusively from ancient grains, but the product allegedly contains only “non-substantive” amounts of chia and quinoa seeds, which the complaint describes as “pseudocereals among ancient grains.” Claiming false advertising, breach of express and implied warranties of merchantability, fraud and unjust enrichment, the plaintiff seeks class certification, injunctive relief, damages and attorney’s fees.
Two consumers have filed a lawsuit alleging that they contracted Salmonella from deli chicken salad they purchased at Fareway Stores Inc. Porter v. Fareway Stores Inc., No. 18-0050 (S.D. Iowa, filed February 20, 2018). The plaintiffs, a married couple, allege that the contaminated chicken salad sent them to an emergency room—with the wife requiring further hospitalization—and that they both tested positive for Salmonella. The complaint also states that Fareway chicken salad has been linked to “at least 28 confirmed and 66 probable cases of Salmonella” in Iowa by the state’s Department of Health, with reports of possible related illnesses in Nebraska and Minnesota. The U.S. Department of Agriculture’s Food Safety and Inspection Service issued a public health alert about the Iowa outbreak in February 2018. Alleging strict product liability, negligence and breach of warranty, the plaintiffs seek damages and attorney’s fees.
An EU magistrate has returned a preliminary ruling in a dispute between the Scotch Whisky Association and a German manufacturer of a spirit called “Glen Buchenbach” that may hinder the trade group's claim of infringement of the registered geographical term “Scotch Whisky.” Scotch Whisky Ass’n, The Registered Office v. Klotz, No. C-44/17 (opinion of advocate general issued February 22, 2018). The trade group argues that the use of the Gaelic term “Glen” is both an indirect commercial use and an evocation of the registered geographical indication, amounting to a false and misleading indication of origin of the product. Noting that at least three whiskies produced outside of Scotland include "glen" as part of their names, the magistrate found that "‘Glen’ does not have a sufficiently clear and direct link with the protected geographical indication in question.” The indirect use of a registered geographical indication, the court found, “requires the disputed…
Sanderson Farms Inc. lost a motion to dismiss false advertising claims brought by three advocacy organizations when a California federal court ruled that the claims are not preempted by either the Poultry Products Inspection Act (PPIA) or the Federal Meat Inspection Act (FMIA). Organic Consumers Ass’n v. Sanderson Farms Inc., No. 17-3592 (N.D. Cal., entered February 9, 2018). The groups alleged that Sanderson’s marketing materials—which asserted that the poultry was “100% Natural” with “no hidden ingredients” and that “100% natural means there’s only chicken in our chicken”—were misleading because of U.S. Department of Agriculture testing reportedly showing the presence of antibiotics, ketamine, pesticides and “other unnatural substance residues.” The court found that consumer-protection laws “are within the historic police powers resting with the states and are therefore subject to the presumption against preemption ... Consequently, they cannot be superseded by federal law or action unless it is the ‘clear and…
A federal court in California has again denied class certification in a lawsuit alleging that Gerber Products Inc. misbranded baby food, finding that the plaintiff is not entitled to injunctive relief and that the proposed damages models will not provide the correct measure of restitution. Bruton v. Gerber Prods. Co., No. 12-2412 (N.D. Cal., entered February 13, 2018). The complaint alleged that certain “Nature Select” and “Organic” lines of Gerber baby foods made unlawful and deceptive nutrient claims and that the labels did not contain federally required warnings of the high calorie content of the products. After initial rulings on summary judgment were appealed to the Ninth Circuit, the remaining allegations included a claim that the labels violated California’s Unfair Competition Law (UCL) and a claim for unjust enrichment. The court found that although the plaintiff had standing under the UCL, a class seeking injunctive relief can be certified only…
A federal court has granted summary judgment to Wisconsin in an Ohio dairy's lawsuit alleging a Wisconsin law requiring butter to be graded by the U. S. Department of Agriculture or a state-licensed grader violated the commerce, due process and equal protection clauses of the U.S. Constitution. Minerva Dairy, Inc. v. Brancel, No. 17-0299 (W.D. Wis., entered February 5, 2018). In its complaint, the dairy alleged that small companies are unable to afford USDA grading or the creation of separate packaging solely for Wisconsin sales, effectively blocking them from the state’s market. Finding that Wisconsin has a legitimate government interest in requiring grading labels on butter packages to assure consumers of product quality, the court held that the law does not violate the U.S. Constitution's equal protection or due process clauses. The court reasoned that the law does not give Wisconsin butter makers "a categorical ‘competitive advantage over their counterparts outside the…
An Italian appeals court has reportedly voided a fine of €550,000 previously levied on Lidl Stiftung & Co. KG for selling bottles of mislabeled olive oil. The court ruled that Italy’s Antitrust Authority (AGCM) failed to explain why the company's actions were negligent when the agency imposed the fine, which resulted from tests determining that bottles of Primadonna olive oil labeled as extra virgin contained only virgin olive oil. Although the Administrative Court of Lazio confirmed the product only met standards for virgin olive oil, it also determined that Lidl had demonstrated a normal degree of diligence in its control measures and verification systems.
The Trademark Trial and Appeal Board has denied Hy-Vee Inc.'s application to register the “Peaceful Piranha” mark for a line of snack foods, deeming the mark to be too similar to the mark for an existing line of “Piraña” snack foods. In re Hy-Vee, Inc., No., 87120774 (T.T.A.B., entered February 6, 2018). Finding “piranha” to be the dominant portion of the mark, the board found the term likely to confuse consumers unfamiliar with Spanish because they may read the pronunciation of the terms as identical. Further, consumers who understand Spanish may be confused because they would understand the cognate terms as a reference to the fish. Although Hy-Vee argued that “peaceful” and “piranha” are counterintuitive, creating an entirely different connotation with no association to “vicious” piranha fish, the board found the term “peaceful” was not likely to distinguish the marks because “it would merely indicate an atypical piranha, possibly for use…
